Proposition 8 Is Unconstitutional. What’s Next for the Anti-Gay Law?

Anti-gay marriage proponents should think twice before asking the US Supreme Court to take this case.

February 8, 2012

Today’s decision overruling Proposition 8 is deeply satisfying. The randomly assigned three-judge panel for the US Court of Appeals for the Ninth Circuit Court went beyond finding, 2-1, that Prop 8’s amendment of California’s state constitution failed the rational basis test and violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Judge Reinhardt’s 128-page decision also skewers the claims of Prop 8’s proponents to be protecting marriage, revealing their alleged concerns as nothing more than sheer meanspirited prejudice tricked out as paternalism. To wit, “Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California.”

This is rousing stuff and one of the biggest losses that anti-equality supporters have ever suffered. “Even though this is a narrow decision that applies only to California, it will return us to same-sex marriage in an important state—one that has 40 million people and a disproportionate influence on the politics and culture of the country,” says Dale Carpenter, law professor at the University of Minnesota.

At the same time, the opinion does not break new ground legally. Significantly, says Jennifer Pizer, legal director at the Williams Institute on Sexual Orientation Law and Public Policy, “It does not decide whether anti-gay rules must undergo more rigorous constitutional review, as the United States Department of Justice has concluded. It does not decide whether LGB Americans have the same fundamental right to marry the person they love as heterosexual Americans enjoy.”

That said, I wish the story could stop here while everyone in California who wants to get gay-married does just that, making millions of people happy—especially caterers, florists and clothing stores—and giving the state’s depleted coffers a much-needed boost. But the decision has been stayed until the appellate process concludes. That may not be for some time. Prop 8’s proponents have until February 28 to appeal, as they swore to do if they lost. Meanwhile, the lawyers who brought Perry v. Brown, the unlikely power team of Bush appointee Theodore Olsen and the comparatively left-leaning David Boies, made it equally clear during today’s press conferences that they’ll ask that the stay be vacated and Californians allowed to marry during the ongoing appeals process. The only question regarding appeals, other than whether the stay will be vacated, is whether Prop 8’s proponents will ask first for a Ninth Circuit en banc hearing, or chase this puppy all the way up to the United States Supreme Court, where everything will depend upon Justice Kennedy’s swing vote.

There are good reasons why Prop 8’s proponents should think twice before asking the US Supreme Court to take this case. One of the strongest is that Reinhardt bases much of his legal reasoning on Romer v. Evans (1996), written for the 6-3 majority by… Justice Kennedy. That case, like Perry, concerned an instance where voters passed a referendum to take away fundamental rights and equal protections based on immutable characteristics. In this case it was Colorado, and the amendment to the state constitution would have prevented the passage of any laws, at any level, that would recognize lesbian and gay citizens as a protected class.

Even as far back as 1996, Kennedy was having none of it. In response to claims that “gay rights” were, somehow, “special rights,” he wrote: “To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.”

Dahlia Lithwick, senior editor at Slate, agrees that Romer may have been what Reinhardt had in mind. “I think Reinhardt deliberately crafted this to read like Kennedy rather than Reinhardt,” she said. “But I also think it may not even get to the Supreme Court, or that the Court may take the DOMA cases moving through the courts instead because this decision is so undramatic.” Pizer believes that Reinhardt’s adherence to Romer “makes it less likely that the Supreme Court will grant review, and more likely that that plaintiffs will win if the case does go up.”

But Carpenter is less convinced that proponents wouldn’t push for the Supreme Court—and possibly win. “They may believe they have too much invested to stop, and may make a different calculation about their chances of success in the Court than Boies and Olsen would.” After all, Kennedy is a cautious jurist: he might just do a very thin reading of Romer—and read it as striking down just one state law that deprived LGBT people of all rights rather than condemning California for allowing LGBT people every marital right but the right to use the word “marriage.”

At the end of the day, the only legal scholar who has proved to be 100 percent prescient is Nan Hunter, Georgetown Law professor, who wrote last night: “No wedding bells will be chiming, and the case is still far from over. But there will be a lot of noise in the streets. That is a safe prediction.”

Nancy GoldsteinTwitter Nancy Goldstein's work has appeared in venues including the Guardian, NPR, Politico, Salon, Slate, The American Prospect and the Washington Post, where she was an Editor's Pick and the winner of the blogging round during their Next Great Pundit Contest. You can follow her on Twitter at @nancygoldstein.